WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Lowa Sportschuhe GmbH v. Domain Admin, Whois Privacy Corp.
Case No. D2017-1131
1. The Parties
The Complainant is Lowa Sportschuhe GmbH of Jetzendorf, Germany, represented by Weickmann & Weickmann, Germany.
The Respondent is Domain Admin, Whois Privacy Corp. of Nassau, Bahamas.
2. The Domain Name and Registrar
The disputed domain name <lowa.com> is registered with Internet Domain Service BS Corp. (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on June 9, 2017. On June 9, 2017, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On June 12, 2017, the Registrar transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details.
The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy” or “UDRP”), the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the “Supplemental Rules”).
In accordance with the Rules, paragraphs 2 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on June 13, 2017. In accordance with the Rules, paragraph 5(a), the due date for Response was July 3, 2017. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on July 4, 2017.
The Center appointed Knud Wallberg, Thomas Hoeren and William R. Towns as panelists in this matter on July 24, 2017. The Panel finds that it was properly constituted. Each member of the Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7.
4. Factual Background
The Complainant, Lowa Sportschuhe GmbH, was founded in 1923 by Lorenz Wagner and is a leading manufacturer of footwear, in particular hiking, skiing and mountain boots, which sells its “Lowa” branded goods in more than 50 countries worldwide.
The Complainant holds a number of national German registrations and a number of international registrations of the trademark LOWA for goods in class 25 such as international registration no. 495673 registered under the Madrid System on August 14, 1985.
The Complainant further owns several domain names that contain the LOWA trademark including <lowa.de>, <lowa.be>, <lowa.biz>, <lowa.nl>, <lowashop.de>, <lowashop.eu>, <lowa-shop.com>,
<lowa-shop.de> and <lowa-shop.eu>.
The disputed domain name <lowa.com> was registered on January 30, 2005, and has since that time been used by the Respondent as a parking page that provides links to third party websites.
5. Parties’ Contentions
The Complainant states that the disputed domain name <lowa.com> is identical to the Complainant’s LOWA trademark since it incorporates the mark in its entirety and only includes the generic Top-Level Domain (“gTLD”) “.com” as an additional element.
The Complainant further states that the Respondent does not have any rights or legitimate interests in the disputed domain name.
From the available evidence, the Respondent registered the disputed domain name long after the Complainant began using its LOWA trademarks and the Respondent has registered it with the intention for commercial gain by misleadingly divert consumers. The Respondent, Whois Privacy Corp., appears to be fake or it obviously tries to hide by using hidden data. No similar organization holds rights in the term “lowa” in the European Union Intellectual Property Office (“EUIPO”) or WIPO trademark databases.
In addition, the Respondent does not appear to be commonly known by the disputed domain name nor has acquired any relevant trademarks in the disputed domain name.
Also, the Respondent is neither making a noncommercial fair use of the site nor a bona fide commercial use of the disputed domain name. The website “www.lowa.com” includes links, which are commercial in nature and provides links to Complainant’s competitors. Such commercial use of the disputed domain name, which incorporates the Complainant’s trademarks to link to competing goods, cannot be bona fide and does not provide the Respondent with a right or legitimate interest in the disputed domain name.
Finally, the Complainant states that the disputed domain name was registered and is being used in bad faith.
The disputed domain name matches the Complainant’s business name and incorporates the Complainant’s trademarks in its entirety. The website at the disputed domain name contains advertisements as well as links for goods which compete directly with the Complainant’s goods. Under such circumstances, it is implausible that the Respondent was not aware of the Complainant when registered the disputed domain name and indeed was targeting the Complainant’s trademarks in its registration to improperly profit from its value in bad faith.
Furthermore, the Respondent’s use of the disputed domain name by providing links to Complainant’s competitors’ websites, demonstrates that the Respondent intentionally attempts to attract for a commercial gain, Internet uses to the Respondent’s website by creating a likelihood of confusion with the complainant’s trademarks. The Respondent thus gets compensated by advertisers for the advertisements on its website through click-through arrangements. In addition, the said use of the disputed domain name is disrupting the Complainant’s business.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
According to paragraph 15(a) of the Rules the Panel shall decide the Complaint in accordance with the Policy, the Rules and any rules and principles of law that it deems applicable.
Paragraph 4(a) of the Policy directs that a complainant must prove each of the following:
(i) that the domain name registered by the respondent is identical or confusingly similar to a trademark or service mark in which the complainant has rights;
(ii) that the respondent has no rights or legitimate interests in respect of the domain name; and
(iii) that the domain name has been registered and is being used in bad faith.
Paragraph 4(a) of the Policy states that the burden of proving that all these elements are present lies with the Complainant. At the same time, in accordance with paragraph 14(b) of the Rules, if a party, in the absence of exceptional circumstances, does not comply with any provision of, or requirement under, the Rules, or any request from the Panel, the Panel shall draw such inferences therefrom as it considers appropriate. These elements are discussed in turn below, immediately after the Panel’s considerations in relation to the apparent delay between the registration of the disputed domain name and the filing of the present Complaint.
A. Delay in bringing the Complaint
The disputed domain name was registered in 2005, which raises the issue whether the Complainant has delayed in bringing a UDRP complaint. The time between the 2005 creation date of the disputed domain name and the filing of the Complaint in 2017 is a significant period. Previous UDRP panels have however recognized that the Policy does not contain a limitation period for making a claim and a delay in bringing a complaint does thus not provide a defense per se under the Policy: WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 4.17. The Panel has therefore not drawn any negative inference from the delay in the filing of the Complaint, even in the absence of an explanation from the Complainant: Billards Toulet v. Damon Nelson - Manager, Quantec LLC/Novo Point, LLC., WIPO Case No. D2016-2502.
B. Identical or Confusingly Similar
The Panel finds that the disputed domain name <lowa.com> is identical (in the sense of the Policy) to the Complainant’s registered trademark LOWA since it incorporates the said registration in full. The gTLD “.com” does not dispel a finding of confusing similarity as it is disregarded under the first element confusing similarity test, see section 1.11 of the WIPO Overview 3.0.
The Panel finds that the conditions in paragraph 4(a)(i) of the Policy are therefore fulfilled in relation to the disputed domain name.
C. Rights or Legitimate Interests
It is clear from the facts of the case that the Complainant has not licensed or otherwise permitted the Respondent to use its trademark.
Given the circumstances of this case, and in particular the way that the Respondent has been and is using the disputed domain name, the Panel finds that the Complainant has established that the Respondent has no rights or legitimate interests in the disputed domain name. The Respondent has not produced, and indeed there is no other evidence of the types of circumstances set out in paragraph 4(c) of the Policy that might give rise to rights or legitimate interests in the disputed domain name on the part of the Respondent in these proceedings.
Consequently, the Panel finds that the conditions in paragraph 4(a)(ii) of the Policy are also fulfilled.
D. Registered and Used in Bad Faith
Paragraph 4(a)(iii) of the Policy requires the Complainant to prove both registration and use of the disputed domain name in bad faith. Paragraph 4(b) of the Policy provides an example of circumstances which shall be evidence of registration and use in bad faith:
(i) circumstances indicating that the Respondent has registered or has acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the Complainant who is the owner of the trademark or service mark or to a competitor of that Complainant, for valuable consideration in excess of the Respondent’s documented out-of-pocket costs directly related to the domain name; or
(ii) the Respondent has registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that the Respondent has engaged in a pattern of such conduct; or
(iii) the Respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, the Respondent has intentionally attempted to attract, for commercial gain, Internet users to its website or other online location, by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the Respondent’s website or location or of a product or service on the Respondent’s website or location.
Accordingly, for the Complainant to succeed, the Panel must be satisfied that the disputed domain name has been registered and is being used in bad faith.
Given the circumstances of the case and in particular the evidence on record of the longstanding use of the Complainant’s trademark LOWA, and the inherently distinctive nature of the mark, it is unlikely to the Panel in the current circumstances that the Respondent registered the disputed domain name without prior knowledge of the Complainant and the Complainant’s mark. Further, the Panel finds that the Respondent could not have been unaware of the fact that it chose a domain name which could attract Internet users in a manner that is likely to create confusion for such users.
The Panel therefore finds that the disputed domain name was registered in bad faith.
Also, the Respondent is at present using the disputed domain name actively for a standard parking page that contains links to websites that appear to offer LOWA branded footwear as well as to websites of possible competitors of the Complainant. It is thus obvious to the Panel that the Respondent is using the disputed domain name in bad faith by intentionally attempting to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of its website.
Noting that the disputed domain name incorporates a registered and distinctive trademark and that the Respondent appears to have targeted the Complainant in registering the disputed domain name, there appears to be no conceivable good faith use that could be made by the Respondent of the disputed domain name. Further, that the disputed domain name is used for commercial gain and considering all the facts and evidence, the Panel therefore finds that the requirements of paragraphs 4(a)(iii) and 4(b) of the Policy are also fulfilled in this case.
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the disputed domain name, <lowa.com>, be transferred to the Complainant.
William R. Towns
Date: August 1, 2017